Keep Congress Out of the Iran Talks

Believe it or not, these are members of the legislative branch.

Photographer: Bill O'Leary/The Washington Post via Getty Images

March 5, 2015 6:40 PM EST

In the afterglow of Israeli Prime Minister Benjamin Netanyahu's fiery speech to Congress, the Republican-controlled Senate is feeling its oats on foreign policy. Senators should be careful not to undermine President Barack Obama's negotiations with Iran.

Leave aside for the moment the typical partisan debate and more high-minded questions over the respective roles of the legislative and executive branches. The central question here is whether the bill under discussion will increase the odds of a good nuclear deal with Iran. The answer is no.

The bill would require the president to submit any agreement to Congress, which would have 60 days to approve or disapprove it. During this time, no sanctions against Iran could be waived. If Congress votes down the agreement, the president would not be allowed to waive any Iran sanctions. If Congress decides not to vote or approves the deal, the president would have to report to Congress every 90 days on Iran's compliance.

What’s wrong with that? First of all, by suspending the president's power to waive existing Iran sanctions for 60 days, the bill undermines any offers of sanctions relief that his negotiators made to Iran in Geneva. And if Congress votes down the agreement, it also removes the president’s ability to renew previous sanctions waivers agreed to in November 2013. In other words, a “no” vote on a new agreement also effectively blows up the existing deal, under which Iran’s nuclear program has been frozen (and in some cases rolled back) and subject to greater inspection.

Moreover, the certification that the president has to make every 90 days must state not just that Iran is complying with the agreement, but that it "has not directly supported or carried out an act of terrorism against the United States or a United States person anywhere in the world." Proving a negative is difficult enough, never mind proving a negative about the operations of Iran’s far-flung and decentralized terror network.

Of course Congress has the right (backed by ample historical precedents) to weigh in on the Iran negotiations, not to mention overseeing any agreement. But Obama doesn’t need Congress’s approval to conclude this deal, which is why the White House has rightly promised a veto.

The Constitution gives the prerogative in the conduct of foreign policy to the executive branch. Although an international treaty can become binding on the U.S. only if the Senate provides its advice and consent to ratification by a two-thirds majority, the president has the power to conclude so-called executive agreements with other nations.

In fact, while the U.S. has ratified roughly 1,100 treaties since 1789, it has concluded more than 18,500 executive agreements, most of them since 1939. Notwithstanding Secretary of State John Foster Dulles’s crack that “every time we open a new privy, we have an executive agreement,” some have been momentous -- including U.S. recognition of the Soviet Union in 1933, the 1973 Vietnam Peace Agreement and the Iranian Hostage Agreement of 1981.

Yes, it also makes sense politically for Obama to treat this deal as an executive agreement rather than a treaty: In today’s partisan polarized climate, he can’t even get his ambassadors confirmed (indeed, Congress probably would have voted down the agreement that has kept a lid on Tehran’s nuclear ambitions since November 2013). But he also has the more principled argument in his favor. Happily, in this case, the principled and the political are not at odds.

To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at davidshipley@bloomberg.net.